35 S.W. 341 | Tex. App. | 1896
Opinion. — Appellant sued the city of New Braunfels in damages, for the value of a certain building and its contents, the property of appellant, which the petition avers was destroyed by fire without the fault or negligence of appellant, and was so destroyed by reason of the negligence and want of care of appellee in this: that at the time of the fire, and before, the city was the owner of, and actually operating, a system of water-works, and that said works were erected by means of taxation of the property situated in said city, and that the city charged its inhabitants tolls and rates for the use of water from said system and was thereby maintained, and that the city was then operating said works and supplying water as a business for its gain and advantage, and that the appellant was a patron of said works, paying the usual and customary rates, and was a taxpayer of said city. That the city by reason of these facts assumed the duty and became bound to supply its public hydrants and those controlled and owned by appellant and other patrons of the system for the general purpose for which water is used and for the extinguishment of fires. That there was located and convenient to the property destroyed public hydrants used by said city for extinguishing fires and also private hydrants of appellant which connected with said water system. That at the time of the fire the city negligently permitted the water to get so low in the stand-pipe that sufficient pressure was not furnished to throw the water upon the burning building from the hydrants aforesaid, and that the city negligently permitted its water-works to get out of repair and so remain, and that but for the negligence as stated, water could and would have been used through the hydrants and the fire extinguished and as a consequence the property saved. It is also alleged that the city was incorporated under the general laws of this State relating to the incorporation of cities of over one thousand inhabitants. From the averments as a whole the inference is permissible that if the water had been supplied through the hydrants, those in use by the city as well as those in the control of appellant, that he would and could have used and operated them by means at his control and thereby extinguished the fire. This in effect is about the case made by the petition, and it is possible that it is somewhat vague and indefinite and not full enough in some respects; but the demurrers were not, it seems, sustained for these reasons, but were sustained, as we are led to believe from the manner in which the case is here treated, upon the ground that a city would not be liable under the circumstances stated. It is from the ruling of the court in sustaining the demurrers that this appeal is prosecuted.
A city or town incorporated under the general laws of this State voluntarily assumes its incorporated and municipal status. And its powers and privileges with reference to supplying the city and its inhabitants with water are authorized by article 374, Sayles' Civil Statutes, and such rights and privileges and responsibilities when assumed are voluntary, as the law does not require the city as a public duty to furnish water. There are similar statutes authorizing the city to construct streets, *338 sidewalks, sewers, drains, bridges and to furnish lights, markets, hospitals, work houses, etc. In the matter of streets and highways and of some other named public property, the city is given exclusive control and is empowered to keep in repair and proper condition. The statute concerning the supply of water does not give the city exclusive authority to so furnish and supply the city with water. It says that the city may furnish water or cause it to be provided for the extinguishment of fires and for the convenience of the inhabitants.
The question to be decided is, can a city so voluntarily incorporated as appellee, which for its advantage and gain has voluntarily assumed the duty of supplying its inhabitants water for general purposes and for the extinguishment of fires, be held liable to the injured party, who is a patron of the works, for its negligence in operating its works whereby a failure to supply water resulted and thereby caused the damages complained of, when by a system of works, supposed to be adequate and in actual operation, the duty could have been and would have been performed but for the negligence complained of. At the outset it may be said that where it has been sought to hold municipal corporations liable for a failure to furnish water, or the negligent operation of its waterworks or appliances for the extinguishment of fires, or for the failure of those charged with such service to perform it with care and whereby property has been destroyed by fire, the great majority of cases upon the subject have denied liability. These cases deny liability upon several grounds; some hold that supplying the city with water is purely a public governmental duty; and in some, where the liability was sought for the negligence of the fire department in operating the apparatus or of the works, it was denied for the reason that those so charged with the negligence were officers of the city and therefore the doctrine of respondeat superior did not apply. Others are based upon the proposition that furnishing and supplying water is an act legislative in character and a matter of discretion with the city, therefore it cannot be coerced in this respect and no action lies for the failure to perform this service. And there is a further reason stated in nearly if not all of these cases, which is more in the nature of an apology than the statement of a principle of law, and this is to the effect that to admit liability would be to cause serious financial embarrassment to incorporated cities and towns, and thereby impair their efficiency to perform the functions of municipal governments.
Municipal liability for negligence or want of care has been denied in many other instances when the complaint was based upon negligence in the conduct of other municipal affairs, and in addition to the reasons stated others have been given. In a few jurisdictions liability has been denied for the reason that it does not exist except by an express statute to that effect. Some few cases draw a distinction between a positive act of negligence committed which may cause injury to another, and the passive conduct of the corporation in the nature of an act omitted which in *339 a negative way may result in harm. In the former the municipal government is held liable, in the latter not liable.
There are instances in which liability was denied upon the ground that the city was exercising the particular function from which the negligence arose under a general statute that applied alike to all cities, and not a special charter or grant of power applicable to that particular locality. But however numerous the reasons may be that have been given for denying municipal liability, those courts that have denied it in cases like the present, as well as the great majority of the courts of the States of the Union and of the United States, together with a number of cases in England, admit that municipal corporations are liable for the negligence in the conduct of a corporate business that concerns the municipality locally, and especially so when they are engaged in it for gain and advantage, although the public is served in its performance, which is not strictly of a public governmental character and which does not involve the exercise of a legislative discretion. And in this view, with some other reasons that have induced them to hold, these courts have steadily held that for negligence in the control and management of its streets, sewers, gas-works, electric plants, bridges, docks, piers and other public works used by the cities in their corporate capacity, they were liable; and have denied the rule that exists in some few States that liability exists only when fixed by statute, and place the liability upon the principles of the common law. City of Greensborough v. McGibbony, 20 S.E. Rep., 38; Barnes v. Dist. Columbia,
By referring to the reasons given in the many cases subsequently noticed there is no substantial difference between the operation of a system of water-works, and streets and sewers and other like works, and if it is true, as there repeatedly held, that cities are liable for negligence in the operation of such works and the management of such property, the same rule of liability should exist for negligence in operating its water-works. The benefits and the purposes to be accomplished in the operation of these works are no more advantageous and useful to the public and the government than is the case in the operation of streets, sewers, docks, etc. Under the averments of the petition there is an aspect of the case when considered clearly, in our opinion, takes the operation of these works out of the realm of governmental functions. It is alleged that the city was operating these works for its profit and advantage and that the appellant was a patron of it for hire and that the city owed him the duty to furnish water, etc. It follows from this that while the city may have been serving the public, it was doing so voluntarily, in a matter and in a way that was locally confined to the inhabitants of the town for their advantage and for the money to the corporation there was to be had in the performance of this service. It is admitted, with only a few exceptions, that a municipal corporation that engages in a business for its gain and advantage, although the public are served in its performance, will be held liable as an individual for its actionable negligence in the conduct of its business. This is even admitted in those courts that adopt the extreme rule of the limited liability of municipal corporations.
There can be no question under the averments but that these works are a business concern carried on by the city. It is as much so as any work or enterprise that a city may engage in. The same elements exist, *342 the same service is performed, the same duties are required, and the same benefits result in the operation of these works, as is the case where similar works are owned, operated and conducted by individuals and private corporations. The reasons employed and facts considered in order to determine in these latter instances if such an enterprise was a business concern, in the main, apply and govern in ascertaining if a like enterprise conducted by the city is a corporate business concern. "The liability of the corporation for its negligence, or that of its servants, is especially clear, and in fact indisputable, where it has received a consideration for the duty to be performed, or where, under permissive authority from the Legislature, it voluntarily assumes and carries on a work or undertaking from which it receives or derives a profit." 2 Dillon, Munic. Corp. (4th ed.), sec. 981 and notes.
The question next in order to be considered is whether, under the averments of the petition, the operation of the water-works was a legislative function and a discretionary matter with the city. It is well settled that if the conduct of a business out of which the alleged negligence arises is a matter legislative in character, and about which the city may exercise a discretion, it will not be held liable, and the courts have no power to control them in such matters, but this rule is subject to the qualification that if the act passes beyond the discretionary and legislative stage, and the city actually engages in the business with no purpose to abandon it, the performance of the service and duties assumed becomes ministerial to the extent of the exercise of ordinary care, in the execution of such work, to those to whom they are owing this duty. The city could not have been held liable for failure to construct and operate the water-works in question, nor can it be controlled in the exercise of its privilege to abandon such works if it sees proper to do so. But such is not the case here, for the averments are to the effect that the city is actually operating its works, and by its negligence failed to perform a duty that it owed to appellant in the performance of the service that it was then engaged in. The duty of the city in this respect ought to be held ministerial. The failure to furnish the water was not from the bona fide exercise of the privilege to abandon the operation of the works, but arose from its negligence when engaged in their present and actual operation. If the city originally constructed and subsequently intended to operate an adequate system of water-works, capable, by the exercise of ordinary care, to furnish a supply of water reasonably adequate to the extinguishment of fires that may occur in that locality, it rested under the duty it had assumed to its patrons that it would exercise ordinary care in the performance of this service, and would not, by its negligence in operation, defeat the purposes intended to be accomplished by a use of the works. "The doctrine may be considered as established, where a given duty is a corporate one, that is, one which rests upon the municipality in respect of its special or local interests, and not as a public agency, and is absolute and perfect, and not discretionary or judicial in its nature, and is one owing to the plaintiff, *343 or in the performance of which he is specially interested, that the corporation is liable in a civil action for the damages resulting to individuals by its neglect to perform the duty, or for the want of proper care or want of reasonable skill of its officers or servants acting under its direction or authority in the execution of such a duty; and, with the qualifications stated, it is liable, on the same principles and to the same extent, as an individual or private corporation would be under like circumstances. For illustration, if a city neglects its ministerial duty to cause its sewers to be kept free from obstructions, to the injury of a person who has an interest in the performance of that duty, it is liable, as we shall see, to an action for the damages thereby occasioned. So, if a city owns a wharf or pier and receives wharfage or profit therefrom, it is liable, like an individual or private corporation, for injuries caused by a failure to keep it in proper condition and repair. So in respect to its failure to keep its streets in a safe condition for public use, where this is a duty resting upon it. The liability of the corporation for its own negligence, or that of its servants, is especially clear and in fact indisputable, where it has received a consideration for the duty to be performed, or where, under permissive authority from the Legislature, it voluntarily assumes and carries on a work or undertaking from which it receives tolls or derives a profit." This is the language of Judge Dillon upon the subject, in his second volume, section 980, on Municipal Corporations.
In determining the duty and liability of corporations that undertake to perform service of this character to those who are for a valuable consideration its patrons, the only reasonable rule is that, by reason of the duties assumed by the corporation which it has undertaken to perform to the individual and the public, they have the right to demand that in the exercise of these functions reasonable care and diligence be observed and that the corporation shall not be guilty of negligence that will defeat the performance of this duty. The situation of the parties and their relation to each other clearly raises an implied obligation to this extent, and a contract results between the corporation and water rent payer that such duty will be observed. The same rules of measuring the duties and responsibilities that exist in other cases where parties impliedly or expressly rest under obligations to perform duties to others, should govern in this case.
Intimately connected with this feature of the case is the discussion of the question whether the negligence for which the municipal corporation will be liable is limited to acts committed which endanger the rights of persons or property of another, or whether it will, in addition, be held liable for the omission or failure to perform an act when confessedly the duty rests upon it to do so and from its failure in this respect injury results. It seems to us the statement of the question is an answer to it, and that those cases that draw a distinction between negligence committed and that that arises by reason of failure to perform a duty are not supported by reason. In the conduct and operation of a work or enterprise, the omission or failure to do an act that is imposed *344 by duty often embraces the elements of an act committed. Take the case here, for instance: the city permitted the works to get out of order, and permitted the water in the stand-pipe to get so low as to not afford a pressure. The acts committed were in permitting the water to get low and in permitting the works to get out of repair; the acts omitted were the failure to repair the works and raise the water in the stand-pipe in order that its use would be serviceable. So, in this case, it may be said the negligence embraces both elements and grows out of both affirmative and negative conduct. But, to get back to the question, we clearly think there should be no distinction and that liability exists as well when the negligence arises from failure or omission to perform a duty as when the injury is traceable to some positive act or wrong which immediately occasions damages. Take the relation of parties in their business affairs: When one undertakes the performance of a service for the other he rests as much under the implied duty that he shall perform the service in the way useful and intended and that he will repair and correct the situation that his fault has occasioned, as well as he is held liable if in the conduct of the business he is guilty of some positive act of negligence from which injury results. In either event the consequence to the injured party is the same, and in both instances it is the fault of the other that occasions the damages. "Negligence is the absence of proper care, caution and diligence, — or of such care, caution and diligence as, under the circumstances, reasonable and ordinary prudence would require to be exercised. It may consist as well in not doing the thing which ought to be done as in doing that which ought not to be done, when in either case it has caused loss or damages to another." This definition is given in a case in which it was held that the city was liable for failing to repair a defective gas-pipe under the control of the city, by which an explosion resulted and caused damages. Kibele v. City of Philadelphia, 105 Pa. St., 44.
We may next consider the question whether liability in this case may be denied upon the universally admitted ground that the city will not be held liable for the conduct of its public officers. Shanewerk v. City of Fort Worth, 32 S.W. Rep., 918, and cases there cited. This doctrine cannot be applied to this case. The petition does not complain of the conduct of an officer of the city, but charges the city directly with negligence in the conduct of a business that does not necessarily have to be performed by a public officer, but may be in the charge of an employe or servant of the corporation. No complaint here is made as to the negligence of the fire department of the city or those engaged in the public service of extinguishing fires; and if such was the case a different ruling might be made, for it is properly held by the weight of authority that those engaged by the city to perform that duty are its officers, for whose conduct it would not be liable. Shanewerk v. City of Fort Worth, supra. The petition alleges that public hydrants were located in the street in reaching distance of plaintiff's property and that plaintiff had in operation private hydrants on his premises which, if *345 supplied with water by sufficient pressure, could and would have been used in extinguishing the fire. There is no complaint that the city did not furnish the apparatus and force of firemen to use it so that the fire could have been prevented or extinguished, but the complaint is in the failure to furnish water, and the inference is clear from the averments that if this had been done the appellant would and could have operated the hydrants and used the water by means under his control and thereby have prevented the loss.
Does the fact that the city in question was incorporated under a general law that applies alike to all cities of the class to which it belongs, relieve it of liability? The doctrine is established in the well considered case of City of Galveston v. Posnainsky,
In response to the reason for non-liability of cities and towns in cases of this character given in most of the decisions that deny it, to the effect that it will create against such municipal corporations liabilities greater than they should bear, much might be said, and the same reason could as consistently be given in a number of other instances to deny liability in cases where it is now admitted by all courts to exist. Admitting liability against railways and other quasi public corporations in the great number of instances in which liability exists has proved disastrous to many of those bodies and has forced them into the hands of receivers, but it has never been urged that this misfortune absolves them from responsibility. If such a reason would hold good in one class of cases why not urge it in all? If it is a good defense against municipal liability for negligence in the management of its water system that to admit it would burden the city with a liability, why, upon principle, should not the same defense be available in bar to liability for its negligence in the control of its streets and other property, for which nearly all the courts admit liability. Damages arising from these causes may impose upon some towns and cities financial burdens as disastrous to the municipality as fires would occasion to other cities.
"The old argument that to admit liability would give rise to a multiplicity of suits is of trifling value. If there is a multiplicity of wrongs there should be a multiplicity of suits, and one and the same principle applies to allowing an action for any wrong. So then, the argument that it inconveniences the public to allow the action is of little force. The public does not feel the inconvenience, if it exists, and the individual who has suffered the loss can ordinarily less afford to bear it than the public. And without sufficient reason no individual should be deprived of his right that others must exercise reasonable care in all their actions so far as they affect him. This fundamental right requires that municipalities should respond in damages when they negligently injure individuals." Jones, Neg. Munic. Corp. sec. 58, page 112. Other reasons in this line are stated in Springfield Ins. Co. v. Reeseville, hereafter quoted. It seems to us that the reason for non-liability here criticised should never be given in any case which falls within the principles of law and equity that govern the rights and liabilities of parties and which if applied determine the rights of one with the corresponding liability of the other, and these reasons should never be urged in any court of law and equity, as they have no place there, but if at all reasons of merit, which is doubtful, should be addressed to the legislative branch of the government.
As relating to the views generally expressed in this opinion we refer to the following cases, which, if not directly, by analogy support our rulings. In reviewing the decisions of our own State attention is directed to the City of Galveston v. Posnainsky,
"The near approach of the close of the term makes it necessary that we content ourselves with a statement of what we understand to be the law on the question raised, as settled by the great weight of authority, and upon principle, in regard to the liability of a municipal corporation created by a special law, granting such powers as are given to the City of Galveston by its charter, and giving such means as are therein given to execute the powers, for damages to an individual, resulting from an injury received through the neglect of such a municipal corporation to keep in repair its streets, other public ways, sewers and like public works over which it is given full control by its charter.
"In this State such corporations are not made liable for injuries resulting from neglect, by any express statute; and if liable, they are so solely on the ground that the proper application of the principles of the common law makes them so liable. To determine what the common law rule upon the subject is, we will refer to the great body of the common law decisions on this question, which for the reasons given, we cannot to any considerable extent review, but will to some extent cite; feeling that a conclusion thus reached will more likely be correct than the conclusion of a single court based upon such course of reasoning as it might pursue.
"It has often been held that no action lies against a subdivision of a State, created solely for a public purpose, by a general law, applicable to all such subdivisions, for an injury received by a person through the neglect of the officers of such subdivision, even though, by the general law, such subdivision may be given a quasi corporate existence, the better to enable it to perform the public service imposed by the law.
"The English cases, the cases in the New England States and in some of the other States in which such quasi municipal corporations exist, illustrate this rule. Those cases are but the practical application and proper extension of the rule that a State cannot be made liable to an action for the neglect or misfeasance of its officers, through which a person sustains injury, unless by statute the action is given.
"In so far as a quasi corporation exercises powers exclusively public in their character, forced upon it without its consent, simply because the State can thus, through such local agencies, more easily and effectively discharge duties essentially its own, it is but proper that no action should be maintained against it for the negligence, or even misfeasance of its officers, unless the action be given by an expression of the same sovereign will which arbitrarily imposed the duty.
"The necessity for imposing, even on such quasi corporations, a liability for the negligence and misfeasance of their officers, and for giving actions against them, through which such liability may be enforced, has generally been felt, and hence statutes ordinarily have been enacted, fixing the liability and giving the action.
"The rule is very clearly presented in the case of Bigelow v. *348
Inhabitants of Randolph, 14 Gray, 543, in which the court said: `It was said by Chief Justice Parsons half a century since, in Riddle v. Proprietors of Locks and Canals,
"The case of Eastman v. Town of Meredith is one of much interest upon the subject under consideration, and may be consulted with much profit, as may the following cases and authorities: Rowe v. Portsmouth,
"The tendency of the decisions is evidently to recognize the liability of even quasi corporations to suit not expressly given by statute, when injury results from the negligence of officials or agents exercising powers purely ministerial in reference to matters which cannot be said to pertain to duties purely public; to matters which, though in a restricted sense, are public, yet more directly affect the welfare and pecuniary interest of the inhabitants of the quasi corporation, upon whose will rests the determination whether the given act shall be performed and how it shall be performed, and upon whom rests solely the expense of the work put in operation by themselves, through which, at least indirectly, they receive benefit in which the general public, if at all, but slightly participates.
"Counties and like quasi corporations are created by the Legislature by general laws without reference to the wish of their inhabitants, and thus for essentially public purposes.
"Not so with towns and cities which are incorporated through special charters, which, like most special laws, are exacted at the request of those who are to be most directly benefitted by them and with a view to this end.
"The one is created for a public purpose as an agency of the State, through which it can most conveniently and effectively discharge the *349 duties which the State, as an organized government, assumes to every person, and by which it can best promote the welfare of all.
"The other, while to a given extent created for a public purpose, is so mainly for the reason that the existence of large towns and cities makes a system or degree of police there necessary which is not so in villages nor with a rural population; but the main and essential purpose for which they are created is the advantage of the inhabitants of the corporation, and in so far as such corporations receive and exercise powers other than such as would be exercised by the State in and through the county organizations, this is essentially true.
"Counties are declared by the laws of this State to be corporations; and they are municipal corporations in the sense that they are agencies `to regulate and administer the internal concerns of the locality in matters peculiar to the place incorporated, and not common to the State or people at large,' but at the same time the State makes use of the corporation, and of its property, such as jails and court houses, and of its officers, to exercise power not strictly municipal, but in fact State powers, exercised for the State through the local officers within prescribed territorial limits. 1 Dillon Munic. Corp., 93.
"Counties are created by general laws, and while they are municipal corporations in a restricted sense, they are involuntarily so, and sustain to the State a relationship which a town or city incorporated does not sustain. They are created to carry out a policy common to the whole State, and not mainly to advance the interest of the particular locality, and to bring advantage or emolument to the inhabitants of the municipality.
"It would seem that, in so far as municipal corporations of any class, and however incorporated, exercise powers conferred on them for purposes essentially public — purposes pertaining to the administration of general laws made to enforce the general policy of the State, — they should be deemed agencies of the State, and not subject to be sued for any act or omission occurring while in the exercise of such power, unless, by statute, the action be given; that, in reference to such matters, they should stand as does sovereignity whose agents they are, subject to be sued only when the State, by statute, declares that they may be.
"How far counties, as municipal corporations, if at all, may be liable for injuries resulting from misfeasance or neglect, it is unnecessary in this case to inquire.
"In so far, however, as they exercise powers not of this character, voluntarily assumed — powers intended for the private advantage and benefit of the locality and its inhabitants, — there seems to be no sufficient reason why they should be relieved from that liability to suit and measure of actual damage to which an individual or private corporation exercising the same powers for a purpose essentially private would be liable.
"Persons and corporations that voluntarily assume and undertake the performance of a work, even though it be quasi public in its character, *350 ought to be held to impliedly contract that they will exercise due care in its performance, and for a neglect in this respect should be liable for the resulting damage.
"We do not wish, however, to be understood to assert that there is a contract between the State and a municipal corporation accepting a charter, but simply to assert that, when such a corporation accepts a charter giving defined powers, the law imposes the duty of faithfully exercising them, and gives an action for misfeasance or neglect in this respect to any person who may be injured by such failure of duty.
"After having considered the true nature and liabilities of counties, towns, townships, boroughs, school districts, road districts and other organizations existing in some of the States, under general laws for the performance of public duties, as a part of the machinery of the State government, Judge Cooley thus speaks of municipal corporations accepting special charters from the State: `The reason which exempts these public bodies from liability to private actions based upon neglect to perform public obligations, does not apply to villages, boroughs and cities which accept special charters from the State. The grant of the corporate franchise, in these cases, is usually made only at the request of the citizens to be incorporated, and it is justly assumed that it confers what to them is a valuable privilege. This privilege is a consideration for the duties which the charter imposes. Larger powers of self-government are given than are confided to towns or counties; larger privileges in the acquisition and control of corporate property; special authority is conferred to make use of the public highways for the special and peculiar convenience of the citizens of the municipality in various modes not permissible elsewhere.
"`The grant by the State to the municipality of a portion of its sovereign powers, and their acceptance for these beneficial purposes, is regarded as raising an implied promise on the part of the corporation to perform the corporate duties, and as imposing the duty of performance, not for the benefit of the State merely, but for the benefit of any individual interested in its performance.
"`In this respect these corporations are looked upon as occupying the same position as private corporations, which have accepted a valuable franchise on condition of the performance of certain public duties, are held by the acceptance to contract for the performance of those duties. In the case of public corporations, however, the liability is contingent on the law affording the means of performing the duty, which, in some cases, by reason of restriction upon the power of taxation, they might not possess. But assuming the corporation to be clothed with sufficient power by the charter to that end, the liability of a city or village, vested with control of its streets, for any neglect to keep them in repair, or for any improper construction, has been determined in many cases.
"`And a similar liability would exist in other cases where the same reasons would be applicable.'
"The Supreme Court of the United States, in a number of cases, has *351
held that municipal corporations with powers no broader, means no greater, and duty not more clearly imposed, than we find in the charter of the city of Galveston, are responsible for injuries which result from neglect to keep streets and other like public works in repair. Weightman v. City of Washington, 1 Black, 39; Chicago v. Robbins, 2 Black, 418; Mayor v. Sheffield, 4 Wall., 189; Evanston v. Gunn,
"`The authorities establishing the contrary doctrine, that a city is responsible for its mere negligence, are so numerous and so well considered that the law must be deemed to be settled in accordance with them. English authorities: Mayor v. Henley, 2 Clark Fin., 331; Mersey Docks v. Gibbs; Same v. Penhallow, 1 H. Ld. Cas. (N.S.), 93; 7 H. N., 439; Lan. Canal Co. v. Parnaby, 11 Ad. Ell., 223; Scott v. Mayor, 37 Eng. Law Eq., 495. United States authorities: Weightman v. Washington, 1 Black, 39; Nebraska City v. Campbell, 2 Id., 590; Robbins v. Chicago, 4 Wall., 658; Supervisors v. United States, Id., 435; Mayor v. Sheffield, Id., 194. New York: Davenport v. Ruckman,
"The following cases and authorities maintain the same proposition Bailey v. Mayor, etc., 3 Hill, 538; Mayor, etc. v. Furze, 3 Hill, 612, *352
Weet v. Brockport,
"In the last case cited, the court thus clearly stated the rule: `The distinction is well established between the responsibilities of towns and cities for acts done in their public capacity in the discharge of duties imposed upon them by the legislature for the public benefit, and for acts done in what may be called their private character, in the management of property or rights voluntarily held by them for their own immediate profit or advantage as a corporation, although inuring, of course, ultimately to the benefit of the public.
"`To render municipal corporations liable to private actions for omissions or neglect to perform a corporate duty imposed by general law on all towns and cities alike, and from the performance of which they derive no compensation or benefit in their corporate capacity an express statute is doubtless necessary * * *.
"`But this rule does not exempt towns and cities from the liability to which other corporations are subject, for negligence in managing or dealing with property or rights held by them for their own advantage or emolument. Thus, where a special charter, accepted by a city or town, or granted at its request, requires it to construct public works, and enables it to assess the expense thereof upon those immediately benefited thereby, by way of tolls or otherwise, the city or town is liable, as any other corporation would be, for an injury done to any person in the negligent exercise of the powers so conferred.' See, also, Dillon on Municipal Corporations, 764; Cooley on Torts, 625; Cooley's Con. Lim., 303; Wharton on Negligence, 956 et seq.; Shearman and Red *353 field on Negligence, 125-133; Thompson on Negligence, 731-768, in which the cases bearing on the question are collected.
"The character of corporate existence possessed by New England towns and cities, not existing under special charters, is very fully considered by Judge Dillon in his work on Municipal Corporations, 11-14, 763-796; and in the cases cited from those States, the decisions are all affected by the fact that the towns, cities or counties possessed only such corporate powers as were given to all such corporations by general laws, and were not municipal corporations created by special charters, at the wish of the inhabitants. This is true in the following cases; Oliver v. Worcester,
"Chosen Freeholders v. Strader, 3 Harr. (N.J.L.), 108; Cooley v. Chosen Freeholders of Essex, 3 Dutch., 415, and Livermore v. Chosen Freeholders of County of Camdeu,
"The case of Pray v. The Mayor, etc.,
"Brinkmeyer v. City of Evansville,
"Duke v. Mayor, etc., of Rome,
"In City of Richmond v. Long, 17 Gratt., 375, it was held that the city was not liable for the value of a slave placed in the city hospital to be treated for small pox who escaped therefrom and came to his death by exposure; and so, because the city in establishing the hospital seems to have acted under a general law which was intended to provide means to prevent the spreading of contagious diseases, the servants of the city *354 in this respect being considered public officers for whose neglect the city was not responsible.
"Prather v. City of Lexington, 13 B. Monroe, 559, and Western College v. City of Cleveland,
"Dargan v. Mayor, etc.,
"The English cases referred to in the brief of counsel for appellant are either cases not against municipal corporations incorporated by special charter, or cases in which the liability of heads of departments of the government, for the defaults or neglects of persons appointed by them, was under consideration.
"The case of Detroit v. Blackeby,
"In the case of City of Navasota v. Pearce,
"The question is one to be decided by the application of common law principles, and to ascertain what those principles are, we can and ought to resort to common law authorities, and doing so, to our minds, the weight of authority holding that such a corporation, created by special charter, is liable for an injury resulting from its neglect to keep its streets in repair, is so overwhelming that we feel constrained to hold the law so to be, and that an action lies for such an injury without its being expressly given by statute."
In Ysleta v. Babbitt, 28 S.W. Rep., 703, it is held that when a city voluntarily undertakes to furnish water for irrigation purposes, to the public, by virtue of article 374, Sayles' Civil Statutes — the same provision of law under which the appellee is operating its water-works — and wrongfully withholds water from a consumer, it is liable therefor in tort.
In Aaron v. Broiles,
In City of Fort Worth v. Crawford,
In City of Austin v. Emanuel,
In Gross v. City of Lampasas,
Turning to the decisions of other courts we note the case of Springfield Ins. Co. v. Keeseville, 80 Hun., 166, and as this case is so full upon the questions discussed, and is so directly in point, we will quote what is principally said by the court:
"Municipal corporations possess two kinds of power, one governmental and public, and the other corporate or private; the first is given and used for public purposes, and in the exercise of those powers it acts *356
as a municipal corporation; the last is given for corporate purposes, and in the exercise of such powers it acts as a private corporation or individual. Lloyd v. Mayor,
"Where the service is being performed for the public good, in obedience to law, and is one in which the municipality has no particular interest, and from which it derives no particular benefit in its corporate capacity, the municipality is not liable for the improper or negligent performance of that service. Maximilian v. Mayor,
"The municipality is not responsible for the acts of the officers or agents performing such public services, although such officers and agents are designated by the municipality; the maxim respondeat superior does not apply. Maximilian v. The Mayor, supra.
"As to those powers and duties which are private corporate powers and duties, and are not for the benefit of the general public a municipal corporation is regarded as a legal entity, and is responsible for its omission to perform its corporate duties to the same extent that a natural person would be under the same circumstances. Conrad v. Ithaca,
"It is sometimes exceedingly difficult to draw the distinction between what are public and what are private corporate powers and duties.
"`The administration of justice, the preservation of public peace and the like, although confided to local agencies, are essentially matters of public concern; while the enforcement of municipal by-laws proper, the establishment of gas-works and water-works, the construction of sewers and the like, are matters which pertain to the municipality as distinguished from the State at large.' Dillon on Mun. Corp. (3rd ed.) sec. 58.
"The supplying of water by municipal corporations is not a public function; it is purely a matter of private business. Matter of Long Island Water Supply Co., 30 Abb., N.C., 36. The general public have no interest in it, it is purely a local matter, exclusively for the benefit of the village.
"When the water-works are constructed they belong to the village, the people of the village pay for them, and ordinarily receive rentals for supplying water. Fleming v. Village of Suspension Bridge,
"And in Bailey v. Mayor, 3 Hill, 531, it was held that the powers granted by the act providing a supply to the city of New York with pure and wholesome water were intended for the private advantage and emolument of that city, the State in its sovereign capacity having no interest in it, and that, therefore, the city was liable for the negligent construction of the dam by the employes of the water commissioners.
"While this case has been criticised in some respects, in several cases, *357
such as in Darlington v. Mayor,
"`In regard to all those powers which are conferred upon the corporation, not for the benefit of the general public, but of the corporators, such as the power to construct works to supply a city with water or gasworks, or sewers, and the like, the corporation is held to a still more strict liability, and is made to respond in damages to the parties injured by the negligent manner in which the work is constructed or guarded, even though, under its charter, the agents for the construction are not chosen or controlled by the corporation, and even where the work is required by law to be let to the lowest responsible bidder.' Cooley's Const. Lim. (3d ed.), 249; Beach's Pub. Corp. sec. 1140.
"The complaint must be read in connection with the statutes governing the defendant; they are as much a part of the complaint as if written in it. The defendant was authorized by chapter 181 of the Laws of 1875, and various acts amendatory thereof, to construct and maintain water-works to supply its inhabitants with water. The president and trustees constitute the board of water commissioners. Chap. 74, Laws of 1891. The defendant receives rents for supplying water; it has control over all the employes connected with the water-works; it can employ and discharge them at pleasure; they are its servants. The construction and maintenance of the water-works is something that was not forced upon it by the power of the State; it could act under the law authorizing it to construct and maintain water-works, or refuse to act, at its pleasure; but having accepted the power and authority granted, it became responsible for the proper exercise of such powers. Cain v. Syracuse,
"Considerable stress was laid in the trial court upon the burdens that would be thrown upon municipalities by holding them responsible in damages in cases like the one before us; while I am not insensible to such considerations, and while perhaps the court may properly give weight to them, in arriving at its determination as to what the law is, still it seems to me that it would be going too far to hold that where a municipal corporation receives money for the support and maintenance of its water-works, has absolute power to employ and discharge the men necessary to care for and maintain such department, it shall in no case be held liable for damages resulting from employing incompetent men, and for knowingly and negligently permitting its water-works, mains and pipes to become and remain out of repair and unfit for service.
"To so hold would remove one great incentive to furnishing an efficient water service. Ordinarily, where there is no responsibility there is an inefficient public service. Every administration in charge of a municipality is anxious for public approval; that approval largely depends upon the tax rate; and to hold municipalities responsible in damages for any lack of reasonable care and diligence in maintaining their *358 public works, which results in injury to property, will result in increased diligence to prevent any increase in the municipal charges. Municipalities, like individuals, are very sensitive to attacks upon the purse. Increased pecuniary responsibility begets increased care and diligence.
"It seems to me that, in matters like these we are now considering, it is no hardship, but on the contrary it will result in a more efficient public service, if municipal corporations are held responsible for the same degree of care and diligence that they are held to in respect to streets and sewers — as expressed by Chief Justice Andrews: `The language of the cases expressing the measure of duty resting upon a municipal corporation in respect to its streets, sewers, etc., has not always been carefully guarded, but the doctrine has been frequently reiterated in this court that there is no absolute guaranty or undertaking on the part of a municipal corporation that its streets or other constructions shall at all times and under all circumstances be in a safe and proper condition, and that its obligation and duty extend only to the exercise of reasonable care and vigilance. There must be willful misconduct or culpable neglect to create liability.' Hunt v. The Mayor,
"The water to be supplied by the defendant, and for which the plaintiff and its assignor contributed to pay, was, amongst other things, for the purpose of extinguishing fires, and it seems to me that where a person can prove that by the willful misconduct or culpable neglect of the defendant, he was prevented from the use of water for such purpose, whereby he has been damaged, he establishes a cause of action. The complaint here is broad enough to permit evidence of willful misconduct or culpable neglect; which being proved, it seems to me would entitle the plaintiff to recover.
"This is not a case where there is simply an inadequate supply of water, but one where, by the mismanagement and neglect of the municipal authorities, the plaintiff's assignor has been prevented from using the water that was otherwise to be had, that she had paid to receive, and that the defendant had, impliedly at least, contracted to furnish.
"The case of Danaher v. Brooklyn (supra) was an action to recover damages for injuries occasioned by drinking impure water at a public well in said city. The court there said: `This water was not furnished for a compensation paid for its use; there was no contract relation between the city and those who used it. The well was for public gratuitous use * * * It owned this well as it owned its other property kept for public use, such as streets, parks and public buildings, and it owed the duty of reasonable diligence to care for it as it was bound to care for such other property. Its liability for unwholesome water in any of its public wells must rest upon negligence.'
"The city was held not liable, because there was no evidence of negligence on its part in caring for the well, but the prevailing opinion held that it was undoubtedly the duty of the city to keep wells and pumps in good order. Keep them in good order for what purpose? To supply *359 good and wholesome water for potable purposes; that was the function to be performed by the wells and pumps. The function to be discharged by the water-works of the defendant is, among others, to furnish water to extinguish fires; it is the duty of the defendant to keep them in such condition that they may discharge that function.
"There may be a distinction between those cases where the injury complained of would not have happened but for the municipality undertaking to exercise a power, and negligently exercising it, so as to create a dangerous condition which would not otherwise exist — as to dig and maintain wells, and allowing the water to become unwholesome and poisonous; or to erect a dam and negligently maintain it; or by its negligent care of water-works, letting water escape so as to undermine a street — and those cases where the same danger would exist, and the same injury result, if the municipality had never assumed to exercise the power in question.
"Danger from fire always exists, and lack of water to extinguish it, resulting in damage, is no new condition of danger created by the defendant. But when the defendant assumed the power of erecting and maintaining water-works, it assumed a two-fold obligation — one not to create any new source or condition of danger by the negligent exercise of such power, and the other to remove, or at least diminish, existing conditions or sources of danger, such as danger from fire. The first duty, that of not creating any new conditions of danger, it owes to all the world; the second, the removal or diminishing of existing conditions or sources of danger, it does not, perhaps, owe to the general public, but only to those who contribute to pay the expense of exercising such powers.
"In the Danaher case (supra) the court, it will be observed, laid stress upon the fact that in that case there was no contractual relation between the city and the parties using the water; that it was gratuitously furnished. In this case the facts are directly contrary. The water is not furnished gratuitously by the defendant. The water-works of the defendant are not supported and maintained by general taxation, but by rents, which rents are measured to a certain extent by the needs of the persons using the water and the amount consumed by them. The water commissioners are authorized to establish a scale of rents to be charged and paid to them `for the supply of water to be called water rents, and appropriated to different classes of buildings in said village, in reference to their dimensions, values, exposure to fires, ordinary or extraordinary uses for dwellings, stores, shops, hotels, factories, livery stables, barns and all other buildings, establishments and trades, yards, number of families or occupants or consumption of water as near as may be practicable.' Section 13, chapter 181, Laws of 1875. The rents are to be paid to them `for the supply' of water. One of the things to be taken into consideration in determining the amount of such rentals is the exposure to fire of the building to be supplied with water, and, as I think may be a fair interpretation, the value of the protection from fire afforded *360 by the water supply. In other words, the water rent payer pays for water to be used in case of fire to save him from loss and damage. And it seems to me that where a person pays that rent he has some rights, and the defendant is under some obligation to him.
"As we have seen before, when a municipal corporation assumes or accepts powers and duties that are not public in their nature, it is to be treated in relation to those powers and duties in the same way as a business corporation or a natural person would be. If a business corporation or natural person had made a charge for furnishing water, and had accepted payment of that charge, we would consider that a contract to furnish water to the person paying. And if that business corporation, by sheer mismanagement, the employment of incompetent men, and by negligence, had prevented the use of the water it had agreed to supply, when it was most needed, the courts, I think, would hold such corporation or person liable for the direct resulting damages.
"The defendant has gone into the water supply business; it is a private corporate business, conducted for its own benefit, and not for the general public; and it would seem to legitimately follow from the different responsibilities recognized by the courts of the State for acts done by municipal corporations in the discharge of duties that are public in their nature and those that are only for the benefit of the particular municipality, that the defendant is liable as for a breach of contract.
"While such a conclusion seems to result naturally from the principles of the cases I have referred to, still I think it is not entirely a correct one. The defendant after all is a purely public corporation; all the powers it has are for the public benefit; some for the general public; some for the public within its boundaries. It is not a corporation conducted for pecuniary gain or profit, and should not be held to the same strict accountability as one conducted entirely for gain; it should not be regarded as an insurer or guarantor. But a public corporation having agreed to erect and take charge of a public work or enterprise for the people within its boundaries, those who contribute of their means to the erection and maintenance of such public work have a right to demand from the corporation reasonable care and diligence in maintaining it, so that it will discharge the functions for which it is created and for which the contributors pay, and to hold it liable for a lack of such care and diligence. That, I think, can fairly be held to be the nature of the implied contract between the water rent payer and the defendant.
"This duty and obligation the defendant, by its demurrer, admits that it failed to perform. It admits that it `wrongfully and negligently allowed and caused its said water-works, pumps, pipes, and fire appliances to become and to be out of repair, broken and weakened, stopped both with mud and other foreign objects, and unfit for use to such extent that water could not be thrown or put upon said dwelling house to extinguish the fire therein.' And it admits that `if said fire appliances and water-works had been in proper working order, said fire could and would have been extinguished without damaging said house to exceed *361 three hundred dollars.' The plaintiff alleges and the defendant admits that it `employed incompetent and unfit men to care for and maintain its said water-works and fire appliances.' The plaintiff alleges and the defendant admits that the plaintiff's loss of $4,140 `was caused solely by the negligence and wrongful and unlawful acts of defendant in failing to keep its water-works and fire appliances in proper working order, and in failing to employ competent men to manage and care for the same.' These allegations and admissions of negligence and of wrongful and unlawful acts, resulting in injury to plaintiff and its assignor, are very broad, and to hold that they do not constitute a cause of action is practically to hold that there is no responsibility attached to municipal corporations, no matter how culpably or willfully negligent they may be in discharging corporate duties they have voluntarily assumed to discharge, and that there is no penalty for the unfaithful discharge of such obligations, unless some official performs some overt act which rises to the dignity of a crime. It seems to me that the complaint sets forth a cause of action and that the demurrer should be overruled.
"I have examined the authorities of other States cited upon the brief of counsel and others. This discussion has already extended so far that I do not desire to prolong it, neither do I see that any profit can be gained by a discussion of those cases. Some of them are in States where there is no municipal liability except that derived from statute. Some arose out of the negligent acts of the officials of the fire department, and it was held that officers of the fire department were not the agents or servants of the municipality, for whose negligence it was liable; in others no distinction is made between powers conferred and duties performed for the welfare of the general public and those that are corporate in their nature, a distinction which, as we have seen, is well recognized in this State; in some there was an inadequate supply of water; in others it turned upon the exercise of the discretion of the authorities in the location of apparatus. Special features distinguished those cases from this.
"There are also some cases directly in conflict with the views herein expressed.
"It is sufficient to say that after a consideration of the views of the courts in the various cases referred to, it seems to me that where the issue is purely one of negligence, the conclusion at which I have arrived as to this complaint is in consonance with the principles relating to municipal liability recognized by the courts of this State, although, so far as can be gathered from the reported cases, never before applied in an action like the one now sought to be maintained."
It is true that this case was not approved by the Court of Appeals of New York, and in reviewing it, that court held that the town was not liable. 42 N.E. Rep., 405. And the reasons there given for this ruling are, — that to admit liability in such cases would involve cities in financial difficulties, and on the further ground that maintaining such works and operating them are public governmental functions. As previously *362 stated in our opinion, these reasons are not sound. In Chalkly v. City of Richmond, 14 S.E. Rep., 341, it is held that the authority to establish a sewer is a matter of legislative discretion, but the duty to maintain it in repair when once constructed is ministerial, and that a city is liable for such neglect. The same is held in Wessman v. City of Brooklyn, 16 N.Y. Supp., 97. In City of New Albany v. Ray, 29 N.E. Rep., 611, the city by negligently digging a hole in a public alley caused water to collect and overflow plaintiff's premises. The city was held liable upon the ground that it was in the performance of a corporate duty. In Barron v. City of Detroit, 54 N.W. Rep., 273, it is held that when a city under the provisions of its charter erects a market place it is exercising a private and proprietary right and is held to the same degree of care as an individual and will be held liable for negligence to the same extent.
In City Council of Augusta v. Hudson,
In Stoddard v. Town of Winchester, 32 N.E. Rep. (Mass.), 948, the superintendent of the water-works of the city was placed in charge of laying pipes along the streets. It was held that the superintendent was the agent of the city in performing the work and that the city was liable for injuries resulting from his negligence.
In Kiesel v. Ogden City, 30 Pac. Rep., 759, when the city constructs a sewer and negligently permits it to become obstructed when under its care it is liable. The duty to keep it in repair is ministerial, although to originally construct it may be a legislative or discretionary function.
In Allen v. City of Boston, 34 N.E. Rep., 519, it is held that the city is liable for its negligent omission to keep a sewer in safe condition.
In McCord v. The City of Pueblo, 36 Pac. Rep., 1109, where the city was authorized to construct ditches, drains and sewers, the manner of constructing them and keeping them in repair is ministerial; and quoting from Dillon, Mun. Corp., sec. 1048, they say: "It is agreed that whenever the duty as respects drains and sewers ceases to be legislative or quasi judicial and becomes ministerial then, although there is no statute giving the action, a municipal corporation is liable to the same extent and on the same principles as a private person or corporation would be under like circumstances for the negligent discharge or negligent omission to discharge such duty resulting in an injury to the others."
In Greenwood v. Town of Westport,
In City of Valparaiso v. Cartwright, 35 N.E. Rep., 1051, it is held that a city is liable for not keeping its drains and sewers in repair.
In Coan v. City of Marlborough, 41 N.E. Rep., 238 (Mass.), it was contended that a sewer which was constructed by the city for the public use, but which was for the benefit and gain of the city, was a public duty and work for the benefit of the public, and therefore the city was not liable; but it was held that when the city voluntarily assumed the duty of building the sewers, it rested under the duty to maintain them and would be liable for its negligence in not so doing.
In City of Augusta v. Hudson, 21 S.E. Rep., 290;
In Stephani v. City of Manitowoc, 62 N.W. Rep., 176, where a city maintains a drawbridge as a part of its street and fails to make the bridge reasonably safe by providing barriers and lights, it is liable for injuries sustained by one by reason of such neglect.
In Cochrane v. City of Frostburgh, 31 Atl. Rep., 706., it is held that a city having the power to exercise privileges for the benefit of the public, the duty rests upon it to do so, and for such failure, if negligent, it is liable to one who has sustained damages thereby.
In Bodge v. Philadelphia, 167 Pa. St., 494, the city by certain grants and privileges, regulated by ordinances, derived an annual revenue from the manufacture of electricity. In an action in which the city was held liable for the negligent conduct of one of the employes of said electrical concern, the court says: "In the performance of municipal duties for the benefit of the city the employees of the bureau are in fact the servants of the city in like manner as are the employees of its water department;" and quoting from Philadelphia v. Gilmartin, 71 Pa. St., 140-158, says: "When a municipal corporation transacts business as a vendor and distributor of water, the relation of her employees is that of servants to her, and the maxim respondent superior applies to their acts and negligence in conducting their business;" and quoting from Kibele v. Philadelphia, 105 Pa. St., 41-45, says: "The city as a manufacturer and vendor of gas was bound to know all about its character, and to take care that; through the default of its officers or agents, the article which it manufactured and sold was the occasion of harm to no one;" and finally says that "in no proper sense can the Electrical Bureau be regarded as a branch of the police power of the municipality."
In Mackey v. City of Vicksburg,
In City of Greensborough v. McGibbony, 20 S.E. Rep., 37, a recent case by the Supreme Court of Georgia, it is held that a city is liable under the common law for negligence in failing to perform its duty in relation to exercising powers intended for the private advantage of the locality and its inhabitants.
In Sutton v. City of Snohomish, 39 Pac. Rep., 275, it is held the laying out and keeping in repair the streets of a city is not strictly a governmental duty, but it is primarily for the benefit of the inhabitants of the particular locality, and the duty to keep in reasonably safe condition is ministerial, and where the duty exists, it must be performed.
In Wilkins v. Village of Rutland, 25 Am. Eng. Corp. Cases, 49 (Vermont), it was held that where the city owns an aqueduct for the supply of water to its inhabitants and permits a water-box to project beyond the surface of the highway, it is liable. The liability is not put upon the ground that it was an obstruction in the street, but is put on the ground that the city owning and managing the water system must keep in repair and use its property so as to not be liable to injure others.
The City of Philadelphia v. Gilmartin, 71 Pa. St., 154, was where the city in the operation of its water-works drew off, in time of drought, water from the Schulykill river, to be used and distributed by its system of works to the inhabitants, thereby lowering the water in the river so as to impede navigation. It was held that as the city was a vendor of water and engaged in the business for profit and its own advantage, the operation of the system was not a governmental function, but was a business enterprise of the city, and in the transaction of such business it was liable as an individual.
In Mulcairns v. City of Janesville,
In Briegel v. City of Philadelphia, 19 Atl. Rep., 1038, it is held that a city is liable for damages occasioned by the negligent plumbing and drainage of a school building, whereby water and filth is deposited in neighboring cellars. This upon the doctrine that a municipal corporation owning property for public purposes must use it with the same care as individuals.
In Cleveland v. King,
In Spangler v. City of San Francisco, 23 Pac. Rep., 1092, it is held *365 that the liability rests upon the city to keep its sewers in repair, and for failure to so do it would be liable.
In Bank v. City of Lowell, 26 N.E. Rep., 98, the city cut off the water from one to whom it was obligated to furnish, and suit was brought for the damages sustained. In defense it was urged that the city, in the conduct of its water system, was performing a public service, and could not be held liable. It was held that it rested under the implied duty to continue to furnish the water and was liable for its negligence in not doing so.
In Stock v. City of Boston,
In Oliver v. Worcester,
In Barnes v. District of Columbia,
In Aldrich v. Tripp, 23 Am. Rep., 434 (
Bailey v. Mayor of New York, 38 Am. Dec., 670 (3 Hill, 531), an instructive and leading case upon the liability of municipal corporations, was where the city was held liable for damages occasioned by the breaking of the dam across Croton river, erected by the city as a part of its water system. It was there held that a city in the prosecution and conduct of a work or business in which it was engaged for gain or advantage, although the public were benefitted by it, in which the State in its sovereign capacity has no interest, is answerable as a private corporation, although such works may be in the nature of great enterprises for the public good.
In Noonan v. City of Albany, 35 Am. Rep., 540, a city that negligently diverts water on to the property of the plaintiff is liable in damages.
In Smoot v. Mayor of Wetumpka,
In Rowe v. Portsmouth, 22 Am. Rep., 464 (
In Memphis v. Lasser, 9 Humph., 757, the city, through its mayor and aldermen, caused to be dug in the street a cistern to be used as a part of water system to be used in extinguishing fires. It was negligently left uncovered and the plaintiff fell into it and was injured. It was held that the city was liable.
In City of Petersburg v. Applegarth, 26 Am. Rep., 358 (23 Grat., 321), the city owned and operated a wharf for the use of which it was allowed charges. A vessel, in approaching, was injured. It was held that the operation of the wharf was not a governmental function, but a business carried on by the city in its corporate capacity, and that the city rested under the duty to keep it and the approach thereto in repair, and for its failure to so do it would be negligent, and that the duty in this respect was ministerial.
In City of Logansport v. Wright,
In City of Montgomery v. Gilmer,
In Carrington v. St. Louis, 89 Mo., 209, 58 Am. Rep., 109, it is held that a city is liable for the negligent use of its property, the same as private corporations. The injury in this case arose out of the negligence of the city in leaving open a trap door opening into a building *368 used and occupied by the police commissioner of the city. The city was held liable.
In Field v. Town of West Orange, 2 Atl. Rep., 236, a town, in making street improvements, caused surface water to be turned and collected upon plaintiff's premises. It was held liable.
In Lloyd v. Mayor of New York,
In Jones v. City of New Haven,
In City of Denver v. Rhodes, 13 Pac. Rep., 730, the damages were occasioned by the city obstructing a drain when laying a sewer pipe. It was contended that the city, in constructing the sewer, was engaged in a public work for the public benefit, and therefore was not liable. The court, in holding the city liable, in passing upon this question says: "In the nature of things this work could not benefit the general public or the State, but the city only," and that the work was authorized by an act of the Legislature does not affect the question, and further holds, that the city, in such a case, is liable, like an individual, for its negligence, whether of acts of commission or omission, and that while right to establish the works are judicial or discretionary, yet if the city has established them, the duty to keep in repair is ministerial.
In Rhodes v. City of Cleveland, 36 Am. Dec., 82, the city in cutting ditches caused a part of plaintiff's land to be washed away. In holding the city liable the court says: "That the increase of corporations and the business which they conduct makes it necessary that the courts meet these expanding powers by an extension of the limits of their liability; and if the city in the scope of its authority should work a wrong to another it should be held liable.
In Gilluly v. City of Madison, 53 Am. Rep., 299, it was held that a city was liable for suffering its sewers to remain out of repair.
In City of Jacksonville v. Lambert,
In Seifert v. City of Brooklyn, 54 Am. Rep., 665, the city constructed sewers which were insufficient to carry off the sewage turned into them. *369 and thereby overflowed plaintiff's land. It was there held that the city was liable, and that, while the duty to erect sewers was discretionary, yet, if the work was undertaken, it must be with due care, and that the city rested under the duty to keep them in repair, and that such duties are ministerial.
In Bates v. Westborough,
In The Giovanni v. City of Philadelphia, 59 Fed. Rep., 303, it was held that a city which, pursuant to its charter powers, engages in the business of towing vessels, is liable for a collision caused by the fault of its vessels. The doctrine that the functions performed were for the benefit of the whole public, consequently it was not a corporate act, but one of a public governmental nature, was held not applicable, and as the city voluntarily engaged in the business it must be held liable as an individual.
In Greenwood v. Town of Westport, 60 Fed Rep., 561, the town had voluntarily assumed the operation of a drawbridge over a navigable stream, and by reason of the failure to exercise ordinary care to place the draw properly, so that an approaching vessel could enter and pass, it was delayed and by a fall of tide it could not pass, and thereby was carried away by the ebb tide and struck bottom and sank. It was held that the town having voluntarily assumed the operation of the draw, it rested under the duty to perform the service in a careful manner and to exercise the degree of care proportioned to the responsibility assumed. In the course of the opinion, pages 570-571, it is said: "In voluntarily assuming such undertaking the town is held to impliedly contract for the exercise of due care, and that it will respond in damages resulting from negligence therein. City of Galveston v. Posnainsky,
In Hand v. Brookline,
In Town of Suffolk v. Parker, 52 Am. Rep., 641, it is held that a town is liable in damages for maintaining a market house that is a nuisance.
In McCarthy v. City of Syracuse,
In City of Fort Wayne v. Coombs, 57 Am. Rep., 82, it is held that the city rests under the duty to properly maintain its sewers, and when one connects his premises, for his private benefit, with the sewer the city owes him the duty to exercise care in maintaining the sewer in proper condition.
In Weed v. Borough of Greenwich,
In Davenport v. City of Hannibal, 18 S.W. Rep., 1123, it was held that a city was liable for personal injuries sustained by a pedestrian at night by reason of its failure to maintain a proper light in the vicinity of a defect in its street.
In Western Saving Fund v. Philadelphia, 31 Pa. St., 175, and another case between same parties, same report, 185, it is held that the city supplying its inhabitants with gas was a matter of corporate business, and not the exercise of a public governmental function.
In Child v. Boston, 4 Allen, 41 and 52, it is held that after a sewer is constructed by the city and is the property of the municipality it must keep it in repair, and for neglect so to do it would be liable.
In Worden v. New Bedford,
In Watson v. Town of Needham, 24 Law. Rep. Ann., 287 (a recent decision by the Supreme Court of Massachusetts), it was held that a town that contracted to furnish water from its system to a greenhouse, and which contract the city violated, would make the city liable.
Pittsburg v. Grier, 22 Pa. St., 63, is an interesting case illustrating the liability of cities and the connection between their negligence and the injuries sustained, and in these respects is applicable to the case at bar. That eminent lawyer, Judge Jerry Black, speaking for the court, says: "The city being in possession of the wharf, exercising an exclusive supervision over it, and receiving tolls for its use, is it a violation of the duty which the corporate authorities owe to the public to let it get out of repair? The affirmative of this was decided in an action on the case against the Mayor and Burgesses of Lyme Regis, 3 Barn. and Adol., 77, and by the Supreme Court of New York in several cases (11 Wend., 543; 21 Wend., 115). The general rule undoubtedly is that those who have a public work under their control, are bound to repair it, and the force of this obligation is still further increased when it yields its possessors a revenue. The cases above cited show that this principle applies to public ports in the possession of a city, as well as canals, bridges and other highways in the hands of individuals and private corporations. There is no reason, nor no authority, for any distinction. The interests of commerce imperatively require that the place to which vessels are invited to come should be in a safe condition. Nobody but the city of Pittsburg can possibly keep her port in order, for she alone has it in charge, and permits no one else to meddle with it; and it is justice that she should take the burden, because she receives the only direct profit which it yields.
"How is the performance of this duty to be enforced, and how shall it be punished if neglected? Lord Tenterden (3 Barn. and Adol., 77) says by indictment for the public wrong, and by action for the special injury to individuals. The same answer is given to the question by Judge Nelson (11 Wend., 534), and by Judge Cowan (21 Wend., 115), and the former sustains his opinion by a citation of numerous authorities.
"It is a mistake to suppose that the right of action is based on the city ordinances, or that the wrong committed consists in a neglect to enforce them. The injury is a violation of the duty which arises out of the control which the city has over the port, and her receipt of tolls from the vessels which come into it. It is no matter whether that duty remains unperformed because she has no ordinances on the subject, or because having ordinances, she neglects to enforce them. The responsibilities of the corporation are the same in either case. The ordinances passed from time to time on the subject are strong evidence to show how and by whom the port is controlled and regulated; but if the same fact had been otherwise proved, it would have had the same effect. *372
"For reasons which will be apparent presently, we do not think it necessary or proper to comment on each minute point of the criticism to which the counsel for the plaintiff in error has subjected the declaration. But the argument that the form of the action has been misconceived, and that it should be assumpsit instead of case (technical though it be), is on a question important enough in practice to demand some notice. The rule deducible from the authorities is that, when the plaintiff has suffered injury from the neglect of a duty which the defendant has impliedly promised to perform, the action may be either way. Thus case was sustained against an attorney for neglecting to recover a debt (6 Pa. St., 361), and against two owners of a stage coach for an injury to a passenger (4 Watts Ser., 179). In the latter case it was said that the plaintiff had his choice to bring assumpsit on the contract, or case as for a breach of duty. The same point had been previously decided the same way by this court (6 Watts, 10), as well as in England (12 East, 534). It is not open to the slightest doubt.
"The point which comes more near than any other to being a substantial defense is that the destruction of the plaintiff's boat was so remote a consequence of the negligence complained of that no recovery ought to be allowed. It is certainly true that compensation for an injury can be demanded only from those whose acts and omissions have directly caused it. We cannot link a series of accidental events together, and follow the chain back as far as we can connect it. The law will not calculate the propulsion of causes on causes, and make him who set the first in motion liable for the damage produced by all. But the application of the maxim, causa proxima non remota spectantur is often very difficult. The books contain no exact rule to determine what is a remote and what is a proximate cause. Each case seems to have been decided as it arose on its own special circumstances. In Morrison v. McFadden, 5 Clark, Pa., 23, the lameness of the horse was so palpably not the cause of the disaster, and the breaking of the dam by which the boat was swept away was so clearly the true, and in legal contemplation the only cause, that the question there was very simple and plain. So, also, it was easy enough to decide, as Lord Ellenborough did in Livie v. Janson, 12 East, 648, that when a ship at sea is so damaged by a storm, and her rate of sailing so reduced, that she is unable to escape the cruisers of a public enemy, and thus comes to be taken, the loss is by capture, and not by perils of the sea. In both these cases the connection of the remote with the immediate causes was merely fortuitous, and the former might very well have happened without the latter. But a cause is not too remote to be looked to, merely because it produces the damage by means of intermediate agency. Where the injury was the immediate consequence of some peril to which the suffering party was obliged to expose himself in order to avoid the one for which he sues, it is proximate enough. The familiar doctrine of marine law which requires the payment of general average, is an instance of this. So if a vessel, insured only against the *373 barratry of the master, is exposed to capture by a barratrous deviation, the underwriter is liable on the ground that the deviation occasioned the loss (Cowper, 153); and this, though there was no immediate connection between the deviation and the capture (1 Johns., 229). Where the barratry consisted in cruising contrary to orders, and the cargo was lost in a storm, which would not have been encountered but for an attempt to take a prize into port, the violation of the orders, and not the storm, was declared to be the cause to which the loss was referable (6 T.R., 379). A ship was captured, and after being detained for some time, was allowed to proceed, but, during the detention, the port to which she was destined was closed by a blockade, and it was held that the loss of the voyage was a consequence of the capture, though it would have been accomplished except for the blockade (9 East, 283). In a case very nearly similar, the same doctrine was adopted and laid down by this court (5 Binn., 412). A ship insured against sea risks is compelled to put into a port where funds to repair her can be had only by drawing bills at a heavy discount; the underwriters are liable for this sacrifice as a consequence of the peril insured against. And the owners of a cargo insured against perils of the sea, may recover from the insurers for the loss of so much as is plundered by the inhabitants of a country where the ship is driven ashore in tempestuous weather (Stevens on Average, 155).
"All these losses were occasioned by causes greatly more remote than that which is here alleged to have produced the wreck of the plaintiff's boat. The negligence of the city authorities in leaving a pile of pig iron on the wharf made it necessary for the Mary Ann to back out into the stream in order to avoid immediate destruction. If she had not done so, the defense would doubtless have been set up that she was mismanaged by those who had charge of her. To prevent her from settling down on the iron as the water sunk, by which she must have inevitably been broken in two, she was shoved out and exposed to another danger, not then apparent, but in its results equally disastrous. How this can be called a remote consequence in the face of the authorities I have cited, is not very easy to see. It followed as an absolute necessity from the effort to get clear of the direct danger. The defendants were bound to furnish the plaintiffs with a secure port. They ought to have performed that duty with vigilant fidelity. But it was done in such a manner that they might as well have received the fee, and then refused the boat a landing altogether. They are held to a responsibility at least as strict as if they had been insurers of the vessel against all dangers from which a well regulated port in good condition would have saved her. Who can doubt that she was wrecked simply because she had not a good landing place.
"It is said, however, that though this part of the wharf was not safe, other parts were; and if the master of the boat chose to adopt a dangerous place when he might have had another which was secure, he brought the disaster on himself. But he had a right to land at any part of the *374 wharf. He chose the place most convenient for discharging his cargo. He had the faith of the city pledged that the place he anchored at was one where his vessel might lie as securely as at any other. If, therefore, it suited him better in other respects, he had a right to take it.
"It is argued that the destruction of the boat was a consequence which the agents of the city could not have foreseen as likely to occur, and, because they did not expect it, they are not answerable for it. But it is not the law that men are responsible for their negligence only to the extent of their injuries which they knew would result from it. If it were, there could be no recoveries except for malicious wrongs. This injury was produced by the iron on the wharf. The question in the cause was whether the loss should fall on the city, whose duty it was to remove the nuisance, and who had the right and power to do it, or on the owners of the boat, who were under no such obligation. Every principle of law and justice requires that it should be borne by the former and not by the latter party."
There are many of the English cases in keeping with some of the American cases cited, prominent among which are Henly v. Mayor of Lyme, 5 Bing., 91, 3 Moore P., 278, 3 Barn. Ad., 77, and same case in House of Lords, 2 Clark Fin., 331; Foreman v. Mayor of Canterbury, L.R., 6 Q.B., 214; White v. Hindley Local Board, L.R., 10 Q.B., 219; Whitehouse v. Fellows, 10 C.B., 765; Brownlow v. Metropolitan Board of Works, 13 C.B., 768; Coe v. Wise, 5 Best S., 440, L.R., 1 Q.B., 711; Winch v. Conservators of Thames, L.R., 7 C.P., 458, and L.R., 9 C.P., 378; Cowley v. Mayor of Sunderland, 6 Hurl. N., 565; Scott v. Mayor of Manchester, 1 Hurl. N., 59, 2 Hurl. N., 210; and Mersey Docks v. Gibbs Penhollow, L.R., 1 H.L., 93, 11 H.L. Cas., 686, 3 Hurl. N., 164, and 7 Hurl. N., 329.
The last two cases cited indicate the tenor of the others. In Scott v. Mayor of Manchester the municipal corporation was empowered by act of parliament to construct gas-works and to supply the inhabitants with gas, and to sell and dispose of the coke and gas for a consideration, and the profits were to be applied to the improvement of the town. In effect, it was held that the work and enterprise was not of a public governmental nature, and was a business for the benefit of the corporation, for which the city in the negligent conduct thereof would be liable.
In Mersey Docks v. Gibbs Penhollow the members of the town council of Liverpool were formed into a public corporation for the control of the docks on the water front of the city. They were empowered to make and maintain the docks for the use of the public, charging tolls and rates for such use. The revenues arising were to be applied to public purposes. A mud bank was negligently suffered to remain in the docks, upon which a vessel was injured. In effect, it was held that the business being conducted by the public corporation in its business capacity, for its advantage, it was liable, and that it rested under the duty to all who may have occasion to use the docks to keep them and the approaches in repair. *375
We are not unmindful of what is said by the Supreme Court of this State in House v. Houston Water-works, 31 S.W. Rep., 184, but the questions involved in this appeal were not before the court in that case, and what is there said that tends to have any bearing upon the question of liability here is dicta. It is possible that the Supreme Court in this way intended to outline the policy that should guide it if the question ever came before it. But the question presented here was not authoritatively decided there, and until the Supreme Court decides otherwise, we will dispose of this, as well as other cases, in accord with the principles we think govern it. The court in that case cites as authority section 975, Dillon, Munic. Corp.; Wright v. City Council of Augusta,
The case of Wright v. City Council of Augusta,
Vanhorn v. City of Des Moines,
The case of Hays v. City of Oshkosh,
In conclusion, we may say that the liability admitted by those authorities which are cited in support of our views, with numerous others in the same line, in the cases of negligence of cities and towns in the control of their streets, sewers, docks and other works conducted by the cities and towns for corporate purposes, and the reasons there stated, are applicable to cases of this character, and there is no solid reason for distinguishing this case from those of the other classes. If we keep in view the principles decided by these cases and hold that they declare the correct doctrine, then there only remains the doctrine of stare decisis *376 upon which to rest the later line of cases, which hold cities and towns not liable for negligence arising from the management of their water systems. In the cases of this character, where reasons for the ruling are given, they are at variance with the principles decided in the authorities we have noticed, and in a number of such cases no reasons are stated, but the courts that rendered the opinions were simply content with a reference to other cases that had so decided, resting their decisions in part evidently upon stare decisis. But this rule does not influence us, as we have no authoritative decisions in this State upon this subject, and, this being the case, we feel at liberty to rest our decision upon what we regard as the principles of law that govern the rights of the parties. If a private water company engaged in the service of supplying water to those with whom it occupied a contractual relation, either by express agreement or by the implied duty that rested upon it by reason of its relation to such parties, would negligently violate its duty, and thereby loss should result, there should be no doubt about its liability in such cases. The principles of law that govern in other cases in which a failure to perform a service in a reasonably careful manner results in loss to one to whom this duty is either expressly or impliedly owing, ought to apply to such water companies. And if this is true the same principles should govern the contract and liability of a city when engaged in a like business.
Judgment reversed and cause remanded.
Reversed and remanded.